FTC Dives into the “Natural” Fray

As we have reported on several occasions, “natural claims,” particularly when used in the advertising of food and dietary supplements, are frequently challenged by competitors and consumers. Neither the Federal Food, Drug, and Cosmetic Act (FDC Act), nor FDA regulations, nor the Federal Trade Commission (FTC) define the term “natural.” Last year, FDA issued a notice for comments regarding the definition of natural for foods (see our previous post here). (FDA extended the comment period until May 10, 2016.) However, thus far, FDA has stuck to its informal policy that it considers “natural” to mean “that nothing artificial or synthetic (including all colors regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in the food.” The Agency has infrequently taken action against a “natural claim” for a food.

FTC’s activity regarding natural claims has been even more limited. Decades ago, in the ‘70s the Commission proposed a definition. But, in 1983, it discontinued its plans for a definition and announced that it would scrutinize such claims on a case-by-case basis.

Thus, the FTC’s April 12 announcement (here, here, and here) of four consent decrees and a complaint against companies that market skin care products, shampoos, and sunscreens online with 100% or all natural claims came somewhat as a surprise.

According to the consent decrees and the administrative complaint, the FTC charged that the companies falsely claimed that their cosmetic products are “all natural” or “100% natural,” even though their products contained synthetic ingredients. Allegedly the companies made the all and 100% natural claims in online ads.

Under the consent orders, the companies may not make such representation unless they have evidence to support the claim. They must have competent and reliable evidence to substantiate any ingredient-related, environmental, or health claims they make. In the complaint against the non-settling company, California Naturel, FTC seeks similar relief. No money penalties were included in the orders.

FTC actions concerned “all natural” and “100 percent natural.” None of the cases addresses “plain” natural claims and the issues that FDA mentions in its notice for comments are not addressed.

The FTC actions provide another reminder to companies that market any over-the-counter products to carefully consider use of natural claims, particularly this type of absolute (“all” and “100%”) claims.